Congressional leaders have said that they will fast-track the
Lilly Ledbetter Fair Pay Act, a bill that would allow pay
discrimination lawsuits to proceed years or even decades after
alleged discrimination took place. Proponents say that the
legislation is necessary to overturn a Supreme Court decision that
misconstrued the law and impaired statutory protections against
discrimination, but the Court's decision reflected both
longstanding precedent and Congress's intentions at the time the
law was passed.
In addition, eliminating the limitations period on claims would
be bad policy. Since ancient Roman times, all Western legal systems
have featured statutes of limitations for most legal claims.
Indeed, they are so essential to the functioning of justice that
U.S. courts will presume that Congress intended a limitations
period and borrow one from an analogous law when a statute is
silent. While limitations periods inevitably cut off some otherwise
meritorious claims, they further justice by blocking suits where
defensive evidence is likely to be stale or expired, prevent bad
actors from continuing to harm the plaintiff and other potential
victims, prevent gaming of the system (such as destroying defensive
evidence or running up damages), and promote the resolution of
claims. By eliminating the time limit on lawsuits, the Ledbetter
Act would sacrifice these benefits to hand a major victory to trial
lawyers seeking big damage payoffs in stale suits that cannot be
The Ledbetter Act would also lead to myriad unintended
consequences. Foremost, it would push down both wages and
employment, as businesses change their operations to avoid
lawsuits. Perversely, it could actually put women, minorities, and
workers who are vocal about their rights at a disadvantage if
employers attempt to reduce legal risk by hiring fewer individuals
likely to file suit against them or terminating those already in
Rather than effectively eliminate Title VII's limitations
period, Congress could take more modest, less risky steps to ease
the law's restrictions, if such change is warranted. Most directly,
it could lengthen the limitations period to two or three years to
match the periods in similar laws. Another option is to augment the
current limitations period with a carefully drafted "discovery
rule" so that the time limit on suing begins running only when an
employee reasonably suspects, or should reasonably suspect, that he
or she has been discriminated against. While either of these
options would sacrifice some of the benefits of the current
limitations period, they are far superior alternatives to throwing
the law wide open to stale claims and abuse.
The Ledbetter Suit
For all the rhetoric about the Supreme Court's Ledbetter
decision -- the New York Times, for one, called it "a blow for
discrimination" -- it addresses not the substance of gender
discrimination but the procedure that must be followed to assert a
pay discrimination claim. Specifically, the case presented only the
question of when a plaintiff may file a charge alleging pay
discrimination with the Equal Employment Opportunity Commission
(EEOC), a prerequisite to suing.
Lilly Ledbetter, who worked for Goodyear Tire and Rubber Co.
from 1979 until 1998 as a factory supervisor, filed a formal EEOC
charge in July 1998 and then a lawsuit in November, the same month
that she retired. Her claim was that after she rebuffed the
advances of a department foreman in the early 1980s, he had given
her poor performance evaluations, resulting in smaller raises than
she otherwise would have earned, and that these pay decisions,
acting as a baseline, continued to affect the amount of her pay
throughout her employment. She said she had been aware of the pay
disparity since at least 1992.
Initially, Ledbetter sued under the Equal Pay Act of 1963 (EPA)
and Title VII of the Civil Rights Act of 1964, a more general
anti-discrimination statute. The EPA, unlike Title VII, has been
interpreted not to require proof that pay discrimination was
intentional but just that an employer paid an employee less for
equal work without a good reason for doing so. For such claims, the
EPA imposes a two-year statute of limitations, meaning that an
employee can collect deficient pay from any discriminatory pay
decisions made during that period, whether or not the employer
intended to discriminate in any of those decisions. Title VII,
while imposing a shorter filing deadline of 180 days and
requiring proof of intent to discriminate, allows for punitive
damages, which the EPA does not. Perhaps for this
reason, Ledbetter abandoned her EPA claim after the trial court
granted summary judgment on it in favor of her former employer.
On her Title VII claim, however, Ledbetter prevailed at trial
before a jury, which awarded her $223,776 in back pay, $4,662 for
mental anguish, and a staggering $3,285,979 in punitive damages.
The judge reduced this total award to $360,000, plus attorneys'
fees and court costs.
Goodyear appealed, and the Eleventh Circuit Court of Appeals
reversed the decision on the grounds that Ledbetter had not
provided sufficient evidence to prove that an intentionally
discriminatory pay decision had been made within 180 days of her
EEOC charge. Ledbetter appealed to the Supreme Court, challenging
not that determination but only the Court of Appeals' application
of Title VII's limitations period.
In a decision by Justice Samuel Alito, the Supreme Court held
that the statute's requirement that an EEOC charge be brought
within 180 days of an "alleged unlawful employment practice"
precluded Ledbetter's suit, because her recent pay raises were not
intentionally discriminatory. Ledbetter argued that the
continuing pay disparity had the effect of shifting intent from the
initial discriminatory practice to later pay decisions, performed
without bias or discriminatory motive. The Court, however, had
rejected this reasoning in a string of prior decisions standing for
the principle that a "new violation does not occur, and a new
charging period does not commence, upon the occurrence of
subsequent nondiscriminatory acts that entail adverse effects
resulting from the past discrimination." For those familiar with the
law, this appeared to be a rehash of a 1977 case that reached the
same conclusion on identical grounds.
Thus, the Court affirmed the lower decision against
The Purposes of Limitations
That result did not speak to the merits of Ledbetter's
case -- that is, whether she had suffered unlawful discrimination
years before -- but only to the application of the statute's
limitations period. Although it seems intrinsically unfair to many
that a legal technicality should close the courthouse doors,
statutes of limitations, as the majority of the Court observed, do
serve several essential functions in the operation of law that
justify their cost in terms of barred meritorious claims. In
general, limitations periods serve five broad purposes.
Justice Story best articulated the most common rationale for the
statute of limitations: "It is a wise and beneficial law, not
designed merely to raise a presumption of payment of a just debt,
from lapse of time, but to afford security against stale demands,
after the true state of the transaction may have been forgotten, or
be incapable of explanation, by reason of the death or removal of
Indeed, Ledbetter itself illustrates this function.
Different treatment, such as pay disparities, may be easy to prove
even after much time has lapsed, because the kinds of facts at
issue are often documented and, indeed, are rarely in dispute. More
contentious, however, is the defendant's discriminatory intent,
which Title VII requires in addition to proof of disparate
treatment. The evidence proving intent can be subtle -- for example,
"whether a long-past performance evaluation … was so far off
the mark that a sufficient inference of discriminatory intent can
be drawn." With the passage of time, witnesses'
memories may fade, stripping their accounts of the details
necessary to resolve the claim. Evidence may be lost or discarded.
Indeed, witnesses may disappear or perish -- the supervisor whom
Ledbetter accused of misconduct had died by the time of trial.
Sorting out the subtleties of human relationships a decade or more
in the past may be an impossible task for parties and the courts,
one at which the defendant, who did not instigate the suit, will be
at a particular disadvantage. This seems to have been the case in
Statutes of limitations, in contrast, require a plaintiff to
bring his or her claim earlier, when evidence is still fresh and
the defendant has a fair chance of mustering it to mount a defense.
In this way, statutes of limitations also serve to prevent
fraudulent claims whose veracity cannot be checked due to passage
Second, statutes of limitations also help to effectuate the
purposes of law. They encourage plaintiffs to diligently prosecute
their claims, thereby achieving the law's remedial purpose. This is
particularly the case for statutes such as those forbidding
discrimination in employment practices, where Congress has created
causes of action to supplement government enforcement actions.
Litigation under such statutes is, in part, a public good, because
the plaintiff in a meritorious suit secures justice not just for
himself but for similarly situated victims, as well as the public
at large, which has expressed its values through the law.
Anti-discrimination law is the archetypical example of an area
where private suits can promote far broader good. Other victims and
the public are best served when workers who believe they have been
subject to discrimination have the incentive to investigate the
possible unlawful conduct, document it, and then challenge it in a
timely fashion. This was an explicit goal of the Civil
Rights Act of 1964, whose drafters reasoned that the short
limitations period and mandatory EEOC administrative process would
lead most discrimination complaints to be resolved quickly, through
cooperation and voluntary compliance.
Third, time limits on filing lawsuits prevent strategic behavior
by plaintiffs. In some cases, plaintiffs may wait for evidence
favorable to the defense to disappear or be discarded, for memories
to fade and witnesses to move on, before bringing claims.
Particularly under laws that allow damages continuing violations or
punitive damages, plaintiffs may face the incentive to keep quiet
about violations as the potential pool of damages grows. Concerns
that plaintiffs will game the system in this way are so prevalent
that an entire doctrine of judge-created law, known as "laches,"
exists to combat certain of these abuses. Laches, however, is
applied inconsistently, and courts often decline its exercise in
enforcing statutory rights. A limitations period puts a limit on
the extent to which plaintiffs can game the law by delaying
Fourth, time-limiting the right to sue furthers efficiency.
Valuable claims are likely to be investigated and prosecuted
promptly, while most of dubious merit or value are "allowed to
remain neglected." Thus, "the lapse of years without any
attempt to enforce a demand, creates, therefore, a presumption
against its original validity, or that it has ceased to subsist."
Statutes of limitations, then, are one way that our justice system
focuses its limited resources on the most valuable cases,
maximizing its contribution to the public good.
Finally, there is an intrinsic value to repose. It promotes
certainty and stability. Putting a deadline on claims protects a
business's or individual's settled expectations, such as accounting
statements or income. At some point, surprises from the past, in
the form of lawsuits, cease to be possible. As with adverse
possession of land, the law recognizes that, though a wrong may
have been done, over time certainty of rights gains value.
For these important reasons, statutes of limitation are
ubiquitous in the law and have been since ancient Roman times.
Limitations periods necessarily close the courthouse doors to some
potentially worthwhile claims -- an outcome so harsh that it would be
"pure evil," observed Oliver Wendell Holmes, if it were not so
essential to the operation of law. That a single good claim
has been barred, then, proves not that the deadline for suit is
unfair or unwise but only that justice cannot provide a remedy in
The Ledbetter Act
Nonetheless, editorial reaction to Ledbetter was swift
and almost entirely negative, with most writers drawing from
Justice Ginsburg's bombastic dissent (which she read in part from
the bench) calling the majority's reasoning "cramped" and
"incompatible with the statute's broad purpose." Ginsburg's logic,
repeated on the opinion pages, and often news pages, of countless
newspapers, was that Ledbetter was a member of a protected class
(women), performed work equal to that of the dominant class (men),
and was compensated less for that work due to gender-based
discrimination. End of story. Pay discrimination, Ginsburg argued,
is different than other forms of discrimination and is more akin to
a "hostile work environment" claim, which by its nature involves
repeated, ongoing conduct. But this is creative reimagining of the
statute: Nowhere in it is there any room for the limitations period
present in the statute or indeed any of the other requirements that
Unfortunately, though, it was Ginsburg's dissent, and her
unseemly urging that "once again, the ball is in Congress'
court," that spurred the drafters of the Lilly
Ledbetter Fair Pay Act, which was introduced soon after the Court
issued its decision and passed the House in short order. The bill
would adopt Ginsburg's view, amending a variety of
anti-discrimination laws to the effect that a violation occurs
"each time wages, benefits, or other compensation is paid" that is
affected by any discriminatory practice. In this way, the law would
simply eliminate the limitations period as applied to many cases.
Under the Ledbetter Act, employees could sue at any time after
alleged discrimination occurred, so long as they have received any
compensation affected by it in the preceding 180 days. While this
would certainly reverse Ledbetter, it goes much further by
removing any time limitation on suing in pay-related cases, even
limitations relating to the employee's learning of the
discrimination -- an approach that is known in other contexts, such
as fraud, as a "discovery rule." This new rule is also
broader in that it would apply to any (alleged) discrimination that
has had an (alleged) effect on pay, such as an adverse promotion
decision. In addition, retirees could bring suits alleging
pay-related discrimination that occurred decades ago if they are
presently receiving benefits, such as pensions or health care,
arguably effected by the long-ago discrimination.
In these ways, the Ledbetter Act would allow cases asserting
extremely tenuous links between alleged discrimination and
differences in pay, which may result from any number of
non-discriminatory factors, such as experience. Employers would
be forced to defend cases where plaintiffs present evidence of a
present wage gap, allegations of long-ago discrimination, and a
story connecting the two. As wage differences between employees
performing similar functions are rampant -- consider how many factors
may be relevant to making a wage determination -- a flood of cases
alleging past discrimination resulting in present disparity would
likely follow passage. In addition to investigatory and legal
expenses, employers will face the risk of punitive damages and the
difficulty of rebutting assertions of discriminatory acts from
years or decades ago.
The flood of lawsuits would not be endless, however, because, as
Eric Posner observes, employers can be expected to change their
hiring, firing, and wage practices to reduce the risk of lawsuits.
To the extent that disparities in treatment are the result of
discrimination, this may undercut its effects. But if, as Posner
puts it, businesses "start paying workers the same amount even
though their productivity differs because they fear that judges and
juries will not be able to understand how productivity is
determined," the law would impose significant costs on businesses
and, by extension, consumers and the economy. The result would
be a hit to employment and wages, combined with higher prices for
many goods and services.
Perversely, the Ledbetter Act may actually harm those it is
intended to protect. In making employment decisions, businesses
would consider the potential legal risks of hiring women,
minorities, and others who might later bring lawsuits against them
and, as a result, hire fewer of these individuals. Even though this
discrimination would violate the law, it would be difficult for
rejected applicants to prove. Other employers might simply fire
employees protected by Title VII -- and especially those who are
vocal about their rights under the law -- to put a cap on their legal
liabilities. Again, this would be illegal, but difficult to
These kind of unintended consequences have been a chief effect
of the Americans with Disabilities Act, which prohibits
discrimination against individuals with disabilities and enforces
that prohibition through civil lawsuits. Today, the disabled earn
less and work far less than they did prior to enactment of the
ADA, and a number of economists, including
MIT's Daron Acemoglu, blame the ADA for reducing the number of
employment opportunities available to the disabled. In
this way, by dramatically increasing employers' exposure to
potential liability when they hire members of protected classes,
the Ledbetter Act would put members of those classes at a
disadvantage in the labor marketplace.
Big Payoffs for the Trial Bar
It is difficult to explain the hue and cry from parts of the bar
that accompanied Ledbetter, given that the plaintiff clearly
could have proceeded under the Equal Pay Act without running into a
limitations period problem. One explanation is that Title VII,
unlike the EPA, allows for punitive damages in addition to several
years' worth of deficient pay. Had she proceeded under the EPA and
prevailed, Ledbetter would have received deficient pay going back
two or three years prior to filing a charge with the EEOC -- about
$60,000 according to the trial court. But under Title VII, the case
was worth six times that amount, due to a large punitive award.
That result becomes all the more alluring to the plaintiff's bar
when one considers the possibility of follow-on lawsuits and, in
limited instances, class actions. A single legal victory against an
employer could provide the fodder for scores of lawsuits by
similarly situated employees and former employees receiving
benefits, each alleging a pattern of discrimination affecting pay,
as evidenced by the previous lawsuits. In this way, each lawsuit
becomes easier and cheaper to bring than the last. Employers, then,
would face the choice of fighting every suit with all their
might -- because any loss could lead to scores more -- or agreeing to
generous settlements, even in marginal cases, to avoid the risk of
This may account for the trial bar's keen interest in the
Ledbetter Act -- it is among the top priorities of the American
Association for Justice (formerly the American Trial Lawyer's
Association) -- despite the existence of other, less
attractive statutory remedies for those who are the victims of
recent or continuing discrimination or unjustified pay
It is true, as proponents of the Ledbetter Act have noted, that
the statute of limitations for Title VII is shorter than most
others. There are good reasons for this, though, considering the
context in which it was drafted. Chief among them, many Members of
Congress, when they considered the Civil Rights Act of 1964, feared
that businesses would be overwhelmed with litigation. Others
favored voluntary conciliation over litigation. Some might have
been concerned that evidence of discriminatory intent would fade
away if the limitations period were too long. A relatively brief
limitations period certainly satisfies these concerns.
But if Congress believes that it is too short, it has far less
drastic and disruptive options at its disposal than effectively
eliminating the limitations period altogether. It could, quite
simply, extend the period to two or three years to match the EPA.
This would give employees more time to uncover possible
discrimination and seek remedies, without allowing a flood of
lawsuits premised on aged grievances. There is also more logic to
matching the more specific statute's limitations periods than
leapfrogging it so dramatically.
Another option was proposed in the last Congress as the "Title
VII Fairness Act" (S. 3209, 110th Cong.). This legislation would
maintain the current limitations period but augment it with a
"discovery rule" so that the period begins running only when the
employee reasonably suspects, or should reasonably suspect, that he
or she has been discriminated against. This approach has the
benefit of encouraging employees to investigate and take action on
worthwhile claims, while keeping many stale claims out of court.
Some courts, however, might twist this looser rule to allow stale
claims brought by sympathetic plaintiffs, such as Lilly Ledbetter,
who learned about the possible discrimination fully six years
before filing a charge. It would also undermine, somewhat, the
clear bright-line rule that a hard statute of limitations provides.
Nonetheless, this approach would provide far more certainty, and
prove far less disruptive, than eliminating the limitations
A Perfect Storm
It was a surprise to many legal observers a year and a half ago
that the Ledbetter case -- an unremarkable application of a
rule settled 20 years prior -- would attract any interest at all. But
on closer examination, the course of events leading up to the
Supreme Court's decision, and the reaction since, have not been by
chance but by design, part of a "perfect storm" orchestrated by
trial lawyers, wrongheaded civil rights organizations, and labor
groups to achieve a radical shift in employment law.
These special interests have an extensive agenda planned for the
current Congress. Yet Members should consider each plank of it on
Far beyond reversing the result of a single Supreme Court
decision -- one that, viewed fairly, was consistent with precedent
and fairly represented Congress's intentions -- the Lilly Ledbetter
Fair Pay Act would open the door to a flood of lawsuits, some
frivolous, that employers would find difficult or impossible to
defend against, no matter their ultimate merit. Rather than help
employees, the bill could end up hurting them by reducing wages and
job opportunities -- at a time when unemployment is rising and many
are nervous about their job prospects. Instead, Congress should
recognize that statutes of limitations serve many important and
legitimate purposes and reject proposals that would allow litigants
to evade them.
Andrew M. Grossman is
Senior Legal Policy Analyst in the Center for Legal and Judicial
Studies at The Heritage Foundation.
Editorial, Injustice 5, Justice 4, N.Y. Times, May 31, 2007.
See Jan Crawford Greenburg, "The Sky's Still Up Here,"
Legalities, July 20, 2007 (criticizing the media and law
professors for their "tabloid-style, Jerry Springer-esque tone" in
response to the decision).
Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct.
2162, 2165 (2007).
U.S.C. § 2000e-5(f)(1).
U.S.C. § 1981a(a)(1).
Ledbetter 127 S. Ct. at 2187.
Id. at 2167-70 (citing United Air Lines, Inc. v.
Evans, 431 U.S. 553 (1977); Delaware State College v.
Ricks, 449 U.S. 250 (1980); Lorance v. AT & T
Technologies, Inc., 490 U.S. 900 (1989); and National
Railroad Passenger Corporation v. Morgan, 536 U.S. 101
Evans, 431 U.S. 553 (Stevens, J.).
Bell v. Morrison, 26 U.S. (1 Pet.) 351, 360 (1828).
Ledbetter, 127 S. Ct. at 2171.
See Rotella v. Wood, 528 U.S. 549, 557-58 (2000). See
generally, Suzette Malveaux, Statutes Of Limitations: A
Policy Analysis In The Context Of Reparations Litigation, 74
Geo. Wash. L. Rev. 68, 77 n.48 (2005).
See 42 U.S.C. § 2000e-5(b) (requiring the EEOC to
attempt to eliminate discriminatory practices "by informal methods
of conference, conciliation, and persuasion"); Occidental Life Ins.
Co. of Cal. v. EECO, 432 U.S. 355, 367-68 (1977).
Laches is "unreasonable delay in pursuing a right or claim--almost
always an equitable one--in a way that prejudices the party against
whom relief is sought." Black's Law Dictionary (8th ed. 2004).
Weber v. Bd. of Harbor Comm'rs, 85 U.S. (18 Wall.) 57, 70
Lindsey Powell, Unraveling Criminal Statutes Of Limitations,
45 Am. Crim. L. Rev. 115, 121 (2008) (citing Francis Wharton, 1 A
Treatise on the Criminal Law of the United States §
444a. n.b (7th ed. 1874)).
Ledbetter, 127 S. Ct. at 2188.
This discussion relies on the act as introduced in the 110th
Congress. H.R. 2831, 110th Cong. § 3 (2007).
For discussion, see infra.
See, e.g., June O'Neill, The Gender Gap in Wages, circa
2000, 93 Am. Econ. Rev. 313 (2003).
Richard Burkhauser & David Stapleton, Introduction, in
The Decline in Employment of People with Disabilities 3-4
Daron Acemoglu & Joshua D. Angrist, Consequences of
Employment Protection? The Case of the Americans with Disabilities
Act, 109 J. Pol. Econ. 915, 957 (2001).
S. 3209, 110th Cong. § 3 (2008).